UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6703
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY RAY HUNT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:09-cr-00034-FL-1; 7:12-cv-00230-FL)
Submitted: August 7, 2015 Decided: September 10, 2015
Before SHEDD and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Shalika S. Kotiya, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Ray Hunt pleaded guilty to possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The
district court initially found that Hunt qualified for enhanced
statutory penalties under the Armed Career Criminal Act, 18
U.S.C. § 924(c) (2012) (“ACCA”), and sentenced him to the
statutory mandatory minimum of 180 months of imprisonment.
Following his unsuccessful appeal of the ACCA finding, Hunt
filed a 28 U.S.C. § 2255 (2012) motion, arguing that the ACCA
enhancement no longer applied following this court’s decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). The district court concluded that Simmons did not apply
to the ACCA determination and that, in any event, Hunt was still
an armed career criminal following Simmons. The court, however,
granted Hunt a certificate of appealability and Hunt appealed.
While Hunt’s appeal was pending, we decided United
States v. Newbold, ___ F.3d ___, 2015 WL 3960906 (4th Cir.
June 30, 2015). In Newbold, we concluded that Simmons applies
to the determination of whether a prior offense is predicate
under the ACCA and that such a claim may be raised in a § 2255
proceeding. Id. at *3-*5. Based on this decision, we vacate
the district court’s order and remand for reconsideration.
“In reviewing the district court's determination that
[Hunt] is an armed career criminal, we review factual findings
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for clear error and legal conclusions de novo.” United
States v. Davis, 689 F.3d 349, 355 (4th Cir. 2012). “The
Government bears the burden of proving by a preponderance of the
evidence that a defendant committed a predicate [serious drug
offense]—the same standard that applies to any other sentencing
factor.” United States. v. McDowell, 745 F.3d 115, 120 (4th
Cir. 2014), cert. denied, 135 S. Ct. 942 (2015). Under the
ACCA, a defendant convicted of violating § 922(g) is subject to
a statutory minimum sentence of 15 years of imprisonment if he
has sustained three prior convictions for either violent
felonies or serious drug offenses. 18 U.S.C. § 924(e). A
serious drug offense is defined, in part, as a state offense
involving manufacturing, distributing, or possessing with intent
to distribute a controlled substance, “for which a maximum term
of imprisonment of ten years or more is prescribed by law.” 18
U.S.C. § 924(e)(2)(A)(ii).
In the proceedings below, the district court concluded that
Hunt’s prior North Carolina convictions for burning an
uninhabited house and 1988 convictions for two counts of
possession with intent to deliver marijuana qualified as ACCA
predicates, and that Hunt’s 1981 convictions for possession with
intent to deliver and delivery of controlled substances did not
so qualify. Hunt does not challenge these findings. The court
also determined that Hunt’s 1987 convictions for possession with
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intent to deliver and delivery of controlled substances were
serious drug offenses under the ACCA, and Hunt argues on appeal
that this finding was error.
In Newbold, we considered whether a maximum term of 10
years of imprisonment was prescribed for Newbold’s 1984 North
Carolina conviction for possession with intent to deliver a
controlled substance. 2015 WL 3960906, at *5-*7. Based on the
sentencing court’s failure to articulate aggravating factors to
expose Newbold to a sentence above the three-year presumptive
term up to the statutory maximum term of 10 years, and the
failure of the judgment to specify whether the sentencing court
actually imposed a sentence above that three-year presumptive
term, we concluded that there was no evidence in the record to
support the conclusion that the offense of conviction was
punishable by 10 years of imprisonment. Id. In light of this
determination, we conclude that the district court should
reconsider its determinations that Hunt’s 1981 convictions were
not serious drug offenses under the ACCA and that Hunt’s 1987
convictions were serious drug offenses.
Accordingly, we vacate the district court’s order and
remand with instructions to reconsider these issues in light of
Newbold. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid in the decisional
process.
VACATED AND REMANDED
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